The redeployment obligation is one of the hurdles that must be overcome before a dismissal can be made. Indeed, besides having a ground for dismissal, a dismissal requires that redeployment of the employee within a reasonable period of time is not reasonable. In short, if the redeployment obligation is not met, no dismissal. But what exactly does the redeployment obligation entail, and how far does it extend?
WHAT IS THE REDEPLOYMENT OBLIGATION?
Under the redeployment obligation, it must be examined whether redeployment of the employee in another suitable position is possible within a reasonable period of time, with or without training. In limited cases, the employer is exempted from this obligation.
The reasonable period is in principle equal to the statutory notice period. This means that the longer an employee has been employed, the longer the period within which the redeployment obligation applies.
A suitable job is defined as a job that matches an employee’s education, experience and capabilities. In general, this will be a job that matches the level of the current job performed by the employee.
When assessing whether suitable positions are available, not only current vacancies are relevant. Consideration should also be given to (i) positions for which vacancies will arise within a reasonable period of time, and (ii) (structural) positions in which – among others – temporary or on-call workers are employed.
The focus here should not only be on the employer’s enterprise. If an employer is part of a group, other branches/companies within the group should also be involved. It does follow from case law that what can reasonably be required of the employer remains relevant. The redeployment obligation is therefore a best-efforts obligation and not a result obligation. We previously wrote an article on this case law (see link).
When investigating redeployment possibilities, consider if any training could contribute to an employee being able to be redeployed in a specific position. Consider an internal or external course or training. When considering whether an employer should offer training, the length of time training should be offered and the cost of training should also be taken into account.
HOW FAR DOES THE REDEPLOYMENT OBLIGATION EXTEND?
The employer is expected to play an active role in redeployment. Merely informing the employee of (expected) vacancies or offering an outplacement programme is generally not sufficient. The employer is also required (among other things) to actively discuss potentially suitable positions with the employee. Where possible, the employer should also remove existing obstacles to the new position.
However, an employee cannot be passive either. An employee is expected to actively respond to the employer’s initiatives and clearly express any interest in a position. In the context of the reemployment obligation, therefore, in a sense, a responsibility also lies with the employee.
WHAT IS THE INTEREST?
For employers, properly fulfilling the redeployment obligation – when there is an intention to dismiss – is important, as the redeployment obligation is one of the requirements to achieve dismissal. For employees, cooperating with the employer’s initiatives is important, because not cooperating or refusing a suitable offer can result in all requirements for dismissal being met and the employer being able to proceed to dismissal. All the more reason, therefore, for both parties to pay sufficient attention to the redeployment obligation.
We have extensive experience in guiding dismissal processes. If you have any questions on how to fulfill the redeployment obligation in a specific case, please feel free to contact us.